CHANDANMAL SRIVASTAVA Vs. MANSINGH

JUDGEMENT

(1.) THIS second appeal under Section 100 C.P.C. has been filed against the judgment and decree dated 6.3.2010 passed by Additional District Judge (Fast Track) No. 4, Ajmer in Civil Regular Appeal No. 151/2009 (116/2003) confirming the judgment and decree dated 26.4.2003 passed, by, Civil Judge (Junior Division) No. 5, Ajmer in Civil Suit No. 12/94. The short facts of the case are that plaintiff respondent filed a suit for the disputed property on 9.4.1979. Earlier the plaintiff respondent has also filed a suit on the ground of tenancy which was dismissed and appeal was also dismissed and second appeal against the same is pending in the High Court. The defendant controverted the plaintiffs case and submitted that he is in possession since 1940, he was never tenant of the plaintiff and he is in exclusive and continuous possession of the property. His title has been perfected by adverse possession. Both the courts below have decreed the suit, hence this appeal.

(2.) THE contention of the appellant is that in view of the fact that the suit filed earlier has been decided against the plaintiff, now this new suit is barred and in present suit also it has been held that the defendant is in possession of the property by way of tenancy, hence he could not be evicted and further his contention is that he is adverse possession of the property, hence the court below has erred in decreeing the suit.

(3.) ISSUE No. 1 and 3 are the main issues in the matter. The suit has been filed on the strength of sale deed dated 19.4.79 which has been submitted and proved by the plaintiff -respondent. The contention of the defendant was that he has perfected his title by adverse possession but the court below has rightly held that when initial possession of the defendant appellant was permissive it cannot be turned into adverse possession and he himself has denied his character as tenant in the property and he has been titled as trespasser in the property and suit for possession has been decreed. The counsel for the appellant has relied on B.V. Patankar & Ors. Vs. C.G. Sastry, : AIR 1961 SC 272 which is in relation to Mysore Rent Control Act which is not the relevant issue in the present appeal. Further reliance has been placed on Maidi Bhikashmiah & Anr. vs. Venugopalrao & Ors., : AIR 1959 AP 146 where provisions of Limitation Act have been explained. There is no issue of limitation here. Further reliance has been placed on Bondar Singh & Ors. vs. Nihal Singh & Ors., : 2003 (2) WLC (SC) Civil 333 wherein it has been held that perverse findings can be set aside in second appeal but here in the present case, the counsel for the appellant could not point out any perversity in the findings. Both the courts below have considered the rival contentions that the plaintiff respondent has purchased the property in 1979 by registered sale deed and the plea of adverse possession has also been considered, hence there is no perversity in the findings of the courts below. The counsel for the appellant could not point out any question of law much less substantial question of law and second appeal can be entertained only on the substantial question of law, hence this appeal deserves to be dismissed.